Terms and Conditions

1. INTERPRETATION

In these standard conditions the following shall have the meaning set out in this clause unless the context otherwise requires:

‘Business Day’

Any day other than a Saturday, Sunday or a public holiday.             

‘Conditions’

Those terms set out in these standard conditions and any special conditions which You have agreed in writing with Us.

‘Contract’

The contract between You and Us for the supply of Goods and/or Services in accordance with these conditions. 

‘Estimate’

Our estimate of the cost of supply of the Goods and/or Services. Such estimates are valid for 30 days or less if specifically specified by Us subject to the fluctuation cost of Our time and Materials

‘Force Majeure Event’

An event beyond Our reasonable control, including but not limited to: industrial disputes, act of God, war, riot, malicious damage, fire, flood, storm or default of suppliers or subcontractors.

‘Goods’

Those articles which You have agreed to purchase.

‘Goods Specification’

Any specification for the Goods, including any design, plans or drawings that are agreed by the parties.

‘Materials’ 

All metals, stones, gems and pearls or any other items  for the manufacture of jewellery (including but not limited to any goods or items made, worked on , processed by or supplied by Us) 

‘Intellectual Property Rights’

All copyright and related rights, rights in design, models, patterns, moulds and samples, CAD design files, design renderings and cam waxes and models, Our modifications and amendments to Your designs, trademarks, service marks, trade, business and domain names, moral rights, rights in confidential information and any other intellectual property rights, whether registered or unregistered and including all applications for and renewals or extension of such rights.

‘Items’

All pieces of jewellery, objects and accessories, Materials or anything else provided by You to Us.

‘Order’

Your order for the supply of Goods and/or Services, effective upon Your oral or written acceptance of Our quotation/estimate.

‘Products’  

All pieces of jewellery, objects and accessories and designs provided by Us from time to time, including sample and consignment pieces supplied to you which are not Goods.

‘Risk’ 

All risks of loss or damage including but not limited to loss damage or theft during manufacturing processes, delivery, transit or posting.

‘Services’                  

Jewellery or other design, manufacturing or repair services agreed to be supplied by Us to You.

Specifications’ 

Any specification for the Services including any design plan or drawing that We have agreed

‘We’, ‘Our’ and ‘Us’

Toshakhana Limited registered in England and Wales with company number 14784203.

‘You’ and ‘Your’

The person, company or firm who purchases the Goods and/or Services from us.

  1. BASIS OF CONTRACT

2.1 The headings in these Conditions do not form a part of the Contract.

2.2 The placing of any order by You shall be deemed to be an offer to purchase Goods and/or Services subject to these Conditions to the exclusion or all others whether contained in Your terms and conditions or otherwise. The placing an order, by You shall be conclusive evidence that agree to be bound by these Conditions .

2.3 The Contract constitutes the entire agreement between the parties. You acknowledge that You have not relied on any promise or representation made by or on behalf of Us, which is not contained in the Contract.

2.4 No variation of these terms shall be effective unless contained in a document signed by Us.

2.5 These Conditions apply to the Contract to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.                  

2.6 All of these conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

  1. PRICE

3.1 The price of the Goods and/or Services shall be that set out Our quoted price or in accordance with Our Estimate. Such quoted price or Estimate shall no longer be valid unless accepted by You within 30 days or such shorter period as We shall have specified.

 3.2 The price set out or quoted in £ GBP does not include VAT which shall be chargeable in addition at the applicable rate.

  1. GOODS

4.1 The quantity and description of the Goods supplied under these Conditions shall be as set out or identified in the Goods Specification.

4.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by You, You shall indemnify Us against all liabilities, costs, expenses, damages and losses, suffered or incurred by Us in connection with any claim made against Us for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the Supplier’s use of the Goods Specification. For the avoidance of doubt it is Your sole responsibility to make sure that your Goods Speciation does not infringe and such third party’s Intellectual Property Rights prior to making Your Order. This clause shall survive the termination of the contract.

4.3 We reserve the right to amend the Good Specification if required by any applicable statutory or regulatory requirements.

4.4 We reserve the right to modify the Goods Specification if it is impracticable or impossible to follow in the design and manufacture of the Goods.

  1. QUALITY OF GOODS

5.1 We warrant that on delivery the Goods shall:

  1. a) Subject to clause 4.3 and 4.4, conform with the Goods Specification; and
  2. b) Be free from material defects in design, material and workmanship.

5.2 Subject to clause 5.3, if:

  1. a) the customer gives notice in writing within 5 Business Days of delivery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
  2. b) We are given a reasonable opportunity to examine and repair the Goods; and
  3. c) You are asked to return the Goods to Our location at Your cost, We will at Our sole discretion repair or replace the defective Goods, or refund the price paid by You to Us for the defective Goods in full.

5.3 We will not be liable for the Goods failure to comply with the warranty in clause 5.1 if:

  1. a) You make further use of such Goods after giving notice in accordance with clause 5.2;
  2. b) the defect arises following dispatch, delivery or if earlier collection, You failed to follow Our instructions as to storage, use or maintenance of the Goods or, in the absence of these, good trade practice;
  3. c) the defect arises as a result of Us following the Goods Specification supplied by You;
  4. d) You alter or repair the Goods after the delivery;
  5. e) the defect arises as the result of fair wear and tear, wilful damage, negligence, or abnormal conditions;
  6. f) the Goods differ from the Goods Specification as a result of changes made as per clause 4.3 and/or 4.4.

5.4 The warranty set out in clause 5.1 only applies to Goods which are designed and/or manufactured by Us.

  1. TITLE AND RISK

6.1 Without Prejudice to clause 6.6 hereof the Risk in the Goods shall pass to You on the date We notified to You that the Goods are ready and must be adequately insured by You for the full cost or value if higher from time of such notification. The responsibility for assessing the insurance value is entirely Yours. For the avoidance of doubt We are not responsible for any loss or damage to those Goods  whether collected by You or by an agent or carrier appointed by You.

6.2 The Risk in Our Products shall pass to You on delivery or on collection by You or an agent or carrier appointed by you.

6.3 The title to any consignment of the Goods will remain with the Us until We have received full payment for them and any other Goods and Services supplied under any other contracts between You and Us. We reserve the right to hold Your Items until full payment for the Goods and/or Services is received.

6.4 Until full payment is received as specified in this Clause 6 You hereby acknowledge that You have possession of the Goods solely as bailee and in a fiduciary capacity for Us

6.5 You shall keep the Goods separate and clearly identifiable as Our property until title has passed under the provisions of this Clause .

6.6 Anything including all Items supplied by You are at Your Risk at all time and you are required to maintain Your own adequate insurance for the full replacement value against all Risks for their full price or if higher, their value, in this respect. We take no responsibility for the same and You agree to indemnify us against any loss or damage resulting from any failure to do so. In particular no such item shall be deemed to have been received by Us unless confirmed to You in writing.

6.7 We require You to collect all Goods, all Items and the product of all Services from Us. In the event that you require delivery in any other manner, You agree that this is entirely at Your Risk.

  1. SUPPLY OF SERVICES

7.1 We will provide the Services to You in accordance the Service Specifications and with the terms of these Conditions.

7.2 We will use all reasonable endeavours to meet any estimated performance dates for the Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the services.

7.3 We reserve the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services. We will notify You of any changes that are material to the Services. 

  1. DELIVERY AND COLLECTION OF GOODS, MATERIALS AND/OR ITEMS

8.1 You will deliver any Materials or Items to Our location, or

8.2 You will arrange for any Material or Items to be delivered to Our location by an agent or carrier appointed by You.

8.3 If You appoint an agent or carrier to deliver any Material/Items, You will ensure that delivery of the Materials/Items is accompanied by a full description thereof and is not deemed to be received by us until confirmed by us to You in writing.

8.4 The following methods will be used to deliver the Goods or the product of our Services to You. Either:

  1. a) You will collect the finished Goods and/or the product of our Services from Our Premises, or such location as We may advise before delivery within three Business Days of Us notifying You that the Goods are ready; or
  2. b) You will arrange for the finished Goods and/or product of our Services to be collected from Our premises by an agent or carrier appointed by You, at Your Risk.
  3. c) We will deliver the Goods or product of our Services via post or courier, at Your Risk, to a location agreed between the parties at any time after We notify You that the Goods are ready.

8.5 If you fail to accept or take delivery of the Goods or the product of our Services within 3 Business Days of Us notifying You that the Goods or Product of our Services are ready, then except where such failure is caused by a Force Majeure Event:

  1. a) Delivery of the Goods or the product of our Services shall be deemed to have been completed at 8.00 am on the 4th Business Day following the day We notified You that the Goods or the Product of our Services were ready; and
  2. b) We will store the Goods and/or the Product of our Services until delivery takes place at Your Risk, and charge You for all related costs and expenses in storing the Goods and/ or the product of our Services.
  3. ACCEPTANCE

9.1 You shall be deemed to have accepted the Goods or the Product of our Services 24 hours after delivery. Thereafter You will not be entitled to reject the Goods or the Product of our Services on the basis that they do not conform to the Goods Specification, or Services Specification except where clause 5.2 is applicable.

  1. LIABILITY AFTER ACCEPTANCE OF THE GOODS

10.1 We shall have no liability to You in respect of the Goods or product of our Services after We notify You that they are ready for collection or delivery.

  1. LIABILITY AFTER REJECTION OF THE GOODS OR PRODUCT OF OUR SERVICES

11.1 If You are entitled to and do reject the Goods and/or product of our Services, We shall have no further obligation to supply goods  or services which conform to the Goods Specification and/or Service Specification.

  1. YOUR OBLIGATIONS AND UNDERTAKINGS

12.1 You will:

  1. a) Ensure the terms of the Order and Goods Specification and/or Service Specification are accurate.
  2. b) Co-operate with us on all matters relating to the Goods/Services.
  3. c) Provide Us with any information that We should reasonably require to supply the Goods/Services and ensure that the information supplied is accurate.
  4. d) Ensure that all Materials and Items that You provide to Us are adequately insured for their full price or if higher their full value at all times against all Risks, including but not limited to: 1) all Risks when Materials and/or Items are kept at Our location or the location of a contractor appointed by Us, and 2) the Risks during transit and transportation between Our location and the location of a contractor appointed by Us.
  5. e) Ensure that all Goods and the product of our Services are adequately insured for their full price or if higher their full value at all times against all Risks as set out in d) above from the time that We notify You that they are ready.

12.2 If Our performance of any of Our obligations in respect of the Services is prevented or delayed by any act or omission by You or any failure by You to perform any relevant obligation (Your Default):

  1. a) We shall, without limiting any of Our other rights or remedies, have the right to suspend performance of the Services until you have remedied Your Default and We will rely on Your Default to relieve Us from the performance of any of Our obligations under the Contract.
  2. b) We shall not be liable for any costs or losses sustained or incurred by You arising directly or indirectly from Your Default.
  3. c) You will reimburse Us for any costs or losses sustained or incurred by Us arising directly or indirectly from Your Default.
  4. PAYMENT

13.1 Payment on any invoice is due within 30 days of rendering or less if Specified by Us.  Payment through our website is in Pounds Sterling (£ GBP).

13.2 Interest on amounts overdue including VAT will accrue at the rate of 8% above the Bank of England Base Rate and will continue to accrue both before and after any judgment unless the relevant judgment rate after judgment is higher.

13.3 Where You cancel an Order or Service and/Goods after commencement of work or sourcing of Materials by Us You will be charged in respect of any time spent and any Materials used.

  1. LIMITATION OF LIABILITY

14.1 Nothing in the terms and conditions shall attempt to limit liability that is not permissible under applicable law including for death or personal injury or for fraudulent misrepresentation.

14.2 We do not accept liability for any consequential economic or other losses suffered by You whether resulting from misrepresentation, misdescription, breach of contract, breach of duty or any other act or omission (unless fraudulent) however caused.

14.3 Our total liability to You in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by Us, Our employees, agents or subcontractors shall not exceed more than a refund of any sum paid or the waiver of any sum contractually payable by You for the Goods and/or Services.

  1. GENERAL

15.1 Assignment and subcontracting:

We may at any time assign, transfer, delegate or subcontract any of Our rights or obligations under the Contract to any third party.

You shall not, without prior written consent from Us, assign, transfer, delegate or subcontract with any of Your rights or obligations under the Contract.

15.2 Force majeure

We will not be liable to You as a result of any delay or failure to perform our obligations under this Contract as a result of a Force Majeure Event.

If the Force Majeure Event prevents Us from providing any of the Goods and/or Services for more than 4 weeks, We shall have the right to terminate, without limiting Our other rights or remedies, the contract immediately by giving written notice to You.

15.3 Law and jurisdiction

This Agreement is governed by the laws of England and Wales and is subject to the exclusive jurisdiction of the courts of England and Wales.

15.4 Invalid clauses

In the event that any term of these Conditions is found to be invalid or otherwise unenforceable then such term shall be regarded and construed as severable from the Conditions so as not to affect the validity and enforceability of the remainder.

15.5 Items

In the event that payment for Goods and/or Services supplied by Us have not been paid for by You in full and We are holding Your Items, We reserve the right to sell those Items to recover any outstanding monies due to Us from You.

15.6 Offset

You shall not be entitled reduce any payment due to Us by way of offset

15.7 Third Party Rights

The Parties hereto agree that it not hereby intended that any rights should be conferred upon or enforceable by any third party as defined in the Contracts (Right of Third Parties) Act 1999.

15.8 Waiver

No failure or delay on the part of Us to exercise the whole or any part of any rights or remedy under this Agreement shall be construed or operate as waiver of that right in whole or in part.